Search Site

Sunday, May 18, 2014

One Last, Small Point About Justice Scalia's Commencement Address

It did not take long to exhaust the basic points of commentary on Justice Scalia's recent commencement address. First Amendment scholars, lulled or captured by his mistaken suggestion that every law student ought to take a First Amendment course, may, however, have missed a small point of some interest to them. Here, via Will Baude at VC, is an introductory, stage-patter-ish remark from Scalia's speech:

I have a philosophy of commencements. They are not for the benefit of the graduates, who would probably rather have their diplomas mailed to them at the beach. They are for the pleasure and satisfaction of the graduates’ families and friends, who take this occasion to observe and celebrate a significant accomplishment on the part of those whom they love. In that respect a commencement is like a wedding or baptism: the primary participants in those events would rather be elsewhere as well. Since that is the nature of a commencement, it does not much matter what the commencement speaker talks about. He can talk about whatever burr is under his saddle, so long as he does not go on too long.

Rereading this, I realized what the line about weddings and baptisms reminded me of: Scalia's concurrence in McCreary County v. ACLU. In his dissent in the companion case of Van Orden v. Perry, Justice Stevens pointed out that there are several different versions of the Decalogue, "ascribed to by different religions and even different denominations within a particular faith." Scalia, in his dissent in the McCreary County case, chimed in on both cases and was both incurious about and indifferent to Stevens's point about the varieties of Decalogue: "The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not)." One may also be reminded of the oral argument in Salazar v. Buono, in which, as Richard Schragger has written, Scalia was "aghast...when an attorney from the ACLU suggested that a cross commemmorating the war dead was offensive to Jews." ("It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect?")

What does all this have to do with the paragraph quoted above? Well, of all the examples of religious ceremonies at which the primary participant would prefer to be elsewhere, I would have thought the best example (aside from a funeral, which may be a little heavy for a commencement address), far better than a wedding--is that a good example at all?--or a baptism, is: a bris.